Obama Administration Must Form an Answer on State Immigration Regulations

Let’s begin with the obvious: Arizona’s recent pattern of legislating in the immigration arena has created an incendiary climate of anger and fear in the state. Perhaps less obvious to the casual observer is that Arizona’s extremism has pushed the constitutional envelope and brought to the fore a critical national question, one that has been festering while Congress dithers: Will the federal government continue to abdicate its constitutional responsibilities over immigration policy and let states fill the void?

The Center for American Progress believes that regulation of immigration and enforcement of civil immigration laws are inherently federal responsibilities under Article I of the Constitution. Fifty different jurisdictions making 50 different sets of rules regulating immigrants would fundamentally negate the federal government’s interest in a coherent and unified foreign policy, not to mention its interest in facilitating interstate commerce. Permitting counties and municipalities to do the same would exponentially increase the chaos.

There is also no legal precedent for state regulation of immigration. The federal government has completely occupied the field of immigration law with a complex and pervasive regulatory scheme. To wit, our immigration laws include more than 70 different temporary visa categories, a couple dozen different permanent resident categories, and a variety of interstitial quasi-statuses—all carrying a variety of rights and obligations. Indeed, it would be hard to identify another area of law in which the federal government has so pervasively regulated the field.

Immigration status determinations are famously complex in part because immigration status is not static. People frequently move from one visa category to another or find themselves temporarily caught in between statuses. Delegating responsibility for enforcing civil status violations to local police not trained in the nuance of immigration law is a recipe for rights violations, not to mention a distraction from more pressing law enforcement priorities.

The Obama administration recently waded in to the debate over whether states can legislate in the immigration arena in a brief filed with the Supreme Court. The case, U.S. Chamber of Commerce v. Candelaria, involves a challenge to an Arizona law passed in 2007 that requires employers to use a national electronic employment verification system called E-verify and establishes a state-level sanctions regime for employing undocumented workers. The 9th Circuit U.S. Court of Appeals upheld the law, but the plaintiffs sought review of that decision with the Supreme Court, and the Court formally requested the administration’s views on the issues raised in the appeal.

The acting solicitor general of the United States argued (correctly) that Arizona had overstepped its authority by establishing a parallel employer-sanctions law. He stated that the state law was explicitly preempted by federal law and that the underlying court decision should be reversed. This is an important signal and a critical first step in halting the growth of state and local immigration legislation. Given the current developments in Arizona and elsewhere in the country, the administration now has an opportunity, and a responsibility, to provide a more expansive articulation of its views on federal preemption of immigration regulation and enforcement by the states.

Proliferation of laws and ordinances

The United States has witnessed an unprecedented explosion of activity by state and local governments seeking to legislate in the immigration arena since the last congressional attempt at comprehensive federal immigration reform failed three years ago. These initiatives range from statewide employment restrictions, to municipal regulations prohibiting housing rentals based on immigration status, and requiring state and local police to enforce immigration laws.

These efforts reflect a sense of lost control and legitimate anger with the federal government’s failure to do its job. They are also an expression of fear and frustration with rapidly changing demographics that bring local resourcing challenges and create cultural tensions. And individuals and organizations driving an anti-immigrant agenda are the ones stoking these fears and egging on or initiating state and local legislative efforts.

These state and local efforts have been counterproductive, as is often the case when actions are the product of fear, anger, or frustration. They have divided communities, triggered costly litigation, and failed to solve the problems they were supposed to address. Perhaps the only constructive thing to come from them is the spotlight they have shined on the consequences of federal inaction.

An excellent case in point is the recent legislation in Arizona, S.B.1070, which has caused a national uproar. It has alienated the fastest growing ethnic group in the state, precipitated a barrage of lawsuits requiring the state to hire a private legal defense firm, and will not begin to solve the challenges posed by illegal immigration into the state.

Public opinion polling confirms that there is majority support for S.B. 1070 in the state. But it also shows there is much stronger opposition from Latinos, who make up 30 percent of Arizona’s population and view the measure as an offensive invitation to racial profiling. And there is significantly broader and deeper support among all Arizonans for a comprehensive federal solution rather than the divisive S.B. 1070. The law hasn’t even gone in to effect and it has already ignited racial tensions and invited a national backlash with significant economic consequences.

Arizona’s law has captured the eye of the national media because of the emotional cauldron ignited by its extremism, but similar stories are unfolding in states and communities throughout the country. The divisiveness and growing pervasiveness of these counterproductive measures demands a federal response.

The administration’s response to Candelaria: A small but important first step

It is safe to assume that the administration would have preferred to address the federalism issues presented by this burgeoning state and local immigration movement by enacting federal comprehensive immigration reform. But with comprehensive immigration reform legislation stuck in neutral and the Supreme Court’s term expiring, a response to the Court on Candelaria became due.

The administration had three basic choices: (1) it could have skirted the substantive questions and argued that the issues were not ripe for Court review, (2) it could have embraced the 9th Circuit’s reasoning and ruling, or (3) it could have done what it did and argue that the measure was preempted by federal immigration law.

The first option would have been deeply unsatisfying to all parties because it would have left us in the dark about the administration’s view on immigration regulation by state and local governments. And that continued silence would have further emboldened other states to pursue similar measures.

The second option would have charted the country on a disastrous course back to the Articles of Confederation by endorsing the right of each state to establish its own immigration policies. Such a course would eventually confront constitutional hurdles regardless of the administration’s legal views. After all, the central impetus behind the Constitutional convention and ultimate ratification of our founding document was the manifest need for national uniformity in such matters.

The administration’s adoption of the third approach was plainly the correct move from both a policy and legal standpoint. The administration argued that Arizona’s law imposing sanctions on employers that hire undocumented workers thwarts Congress’s careful balancing of interests in establishing a national employer sanctions regime. That line of argument can and should be extended to other state and local efforts to legislate in the immigration arena.

The need for uniformity in immigration policy is undeniable. Congress’s power to establish the nation’s immigration policy was enshrined in the Constitution because of the critical foreign policy implications that it triggers. But there are equally significant practical implications in modern America. Businesses operating in multiple states suffer significant economic uncertainty and inefficiency when each state can impose different rules and regulations governing hiring practices. And requiring U.S. citizens traveling throughout the country to carry different documents in different states raises obvious practical concerns and constitutional questions.

This movement to enact state and local immigration laws and regulations threatens legal uniformity and social cohesion. It is time to put the brakes on this movement once and for all, and the administration’s brief in Candelaria is an important first step.

Time to establish supremacy

The solicitor general’s brief in Candelaria was necessarily limited in scope given the posture of the case and the issues presented. Viewed most narrowly, the brief only sets forth the administration’s legal view on state efforts to regulate employment based on immigration status. But the administration has two opportunities to make far bolder and more definitive statements on the federal government’s exclusive role in forming and enforcing immigration policy. We recommend that the administration:

File suit to prevent implementation of S.B.1070

Publish a memo rescinding a Bush-era legal memo expressing an overly broad and unprecedented view of state and local police immigration enforcement powers

Move to prevent implementation of S.B.1070

Arizona’s recent foray into immigration policy with S.B. 1070 provides a vehicle for the administration to draw bright lines against state and local intrusions into the federal government’s immigration policy domain.

S.B.1070 declares an intention to create an immigration policy for the state of Arizona. The statute’s “attrition through enforcement” policy, a concept directly derived from anti-immigrant organizations that have been designated as hate groups, explicitly seeks to regulate and restrict immigration in the state. Such an effort directly contravenes a long line of Supreme Court authority explicitly concluding that regulation of immigration is exclusively a federal power. Of course, the federal government can explicitly or implicitly delegate some of its enumerated constitutional powers, but it has openly not done so in the area of regulating and enforcing immigration laws.

S.B. 1070 creates separate state crimes for offenses related to immigration status—for example, making it a crime to work or solicit work without federal authorization, and requiring noncitizens to carry federal immigration documents at all times. It also mandates that state and local police engage in the enforcement of federal immigration laws—for example, requiring police to determine a person’s immigration status when they suspect the individual is undocumented after a lawful stop.

Arizona’s law has already triggered lawsuits by a number of groups and individuals seeking to prevent its implementation on July 29. One of the central arguments raised by

plaintiffs in those cases is that the newly enacted state crimes and police powers are preempted by federal law. This argument gains force in light of the position that the Obama administration has staked out in the Candelaria case.

S.B. 1070 provides a window into what the logical extension of the state and local immigration ordinance movement would produce. Imagine every state taking up similar legislative efforts. The random scattering of immigration enforcement powers across the country would effectively nullify the federal government’s ability to define immigration enforcement policy. Crossing certain state lines could become the equivalent of crossing national boundaries for all citizens, not just immigrants.

The relative silence of the Bush administration and the Obama administration on the issue, until Candelaria, enabled this movement to grow like a cancer in this debate. The administration can help reverse the spread by taking a clear and unequivocal position by suing to enjoin implementation of S.B. 1070 on grounds of federal preemption.

Rescind the Bush-era opinion on inherent authority

Assistant Attorney General Jay Bybee argued in an unpublished memo in 2002 that state and local police have “inherent legal authority” to enforce civil immigration status violations. It is firmly settled law that state and local police have authority under their general police powers to enforce criminal violations of the immigration code; yet that memo reversed decades of legal consensus about the limitations on state and local enforcement of civil immigration laws.

Attorney General John Ashcroft refused to publish the memo, but he publicly referenced it as legal authority for his request that state and local police make certain civil immigration arrests. The Department of Justice released a redacted version of the memo only after years of Freedom of Information Act litigation and a federal court order. At that point, the selective reading, and thus distortion of legal precedent and blatant flaws in legal reasoning underlying the memo, became public.

The sound legal theory behind restricting state and local police from enforcing civil immigration laws lies in the damage those efforts may have on the federal government’s pervasive regulatory immigration scheme. An obvious example of how state action can impair the federal regulatory interest is in erroneous immigration status determinations by a local officer. Such determinations can lead to unlawful detentions and other rights violations of both U.S. citizens and noncitizens. The likelihood of error is substantial and the resulting harm is severe. It is equivalent to enabling state and local police to investigate and arrest people for civil violations of the tax laws.

Local officers can also upend carefully calibrated prioritization decisions by assuming immigration enforcement responsibilities. There is no such thing as 100 percent enforcement in any area of law; prioritization decisions must be made in the enforcement of any set of rules and regulations. And having local police forces across the country make their own decisions on which immigration status violations to enforce and how may thwart the federal government’s interest in prioritizing allocation of limited detention and removal resources.

Congress provided a very clear and limited statutory mechanism for such collaboration: recognizing these concerns and acknowledging that there may be an appropriate role for local police in some limited circumstances. So-called 287(g) agreements between local entities and Department of Homeland Security allow local police to engage in limited enforcement activities after training by, and under the supervision of, the DHS. The existence of this provision in the immigration code clearly shows that Congress believed that states and localities lacked inherent authority to engage in civil immigration enforcement.

There are also strong policy reasons for reversing current efforts to deputize local cops as immigration agents. Many state and local cops believe that enforcing immigration laws distracts from their core responsibilities of protecting public safety. And when local cops are viewed as immigration enforcers, immigrants who have been victimized by or witnessed crimes become reluctant to report them. That lack of trust between the served community and the police force translates into more crime and less safe communities.

Rescinding the 2002 Ashcroft memo would clearly signal that the federal government will not support state and local governments considering a foray into immigration enforcement.

Conclusion

The public is deeply and justifiably frustrated with the federal government’s failure to regulate who enters the country. Congress has failed to enact reforms that restore the rule of law, and some state and local governments have tried to take matters in to their own hands. These efforts, while understandable on one level, are constitutionally impermissible and ultimately counterproductive.

An uneven patchwork of immigration laws and enforcement policies undermines the federal government’s exclusive authority to regulate and enforce immigration laws. And these efforts will continue to raise tensions, divide communities and states, damage local economies, and lead to costly litigation.

Responsibility for establishing a coherent immigration system that serves the nation’s economic and security interests lies with Congress. The public frustration will continue to grow until Congress acts, and community anger and calls for action should be directed at Washington. But in the meantime, the administration must continue to take steps— including blocking implementation of S.B.1070 and rescinding the 2002 DOJ memo—to clarify that this is fundamentally a federal problem that can only be corrected with a federal solution.

Marshall Fitz is the Director of Immigration Policy at the Center for American Progress.